The New York City Council passed a series of new lead laws last month that will mean stricter requirements for New York City landlords and daycare operators. The ten measures, which became law April 14 and take effect at various times over the next two years, significantly lowers the thresholds for triggering mandatory assessment and remediation efforts. The law also increases existing notice and record-keeping requirements. Landlords and daycare operators should assess their current lead policies to ensure compliance with these new laws as they begin to take effect over the coming months.
Lower lead allowances
Among the most consequential changes are significant decreases to the lead-content thresholds that trigger various inspection and remediation requirements. Under current laws, many landlords and daycare operators must annually inspect living units and daycare facilities for the presence of any “lead-based paint” that is peeling or on surfaces that are chewable, deteriorated or otherwise prone to human exposure. The presence of any such condition, or the presence of any “lead-contaminated dust” in a living unit, triggers an obligation to expeditiously remediate the hazardous condition.
Starting in summer 2020, a living unit or daycare facility will be considered to contain “lead-based paint” with just half as much lead content as under the previous law—down from 1.0 to 0.5 milligrams per square centimeter.
Starting this summer, the lead-content threshold for “lead-contaminated dust” will decrease substantially, to 10 micrograms per square foot on floors, 50 micrograms per square foot on window sills and 100 micrograms per square foot on window wells (down from 40, 250 and 400 micrograms per square foot, respectively). Those thresholds will decrease even further starting June 1, 2021—to five micrograms per square foot on floors, 40 micrograms per square foot on window sills and 100 micrograms per square foot on window wells.
The laws also lower the child blood-lead level trigger for mandatory lead inspections of apartment units and daycare facilities. Starting this summer, the New York City Department of Health and Mental Hygiene (“DOH”) will be required to investigate potential sources of elevated lead in any child under 18 whose blood contains five micrograms per deciliter of lead, down from the previous threshold of 15 micrograms per deciliter.
Changes affecting landlords
The new laws mean several other changes for landlords. Under current law, a landlord’s inspection and remediation obligations apply to any unit in which a child under age six “resides.” The new laws define the term “resides” to mean “routinely present for 10 or more hours per week.” Landlords should ensure their existing lead notices are consistent with the new definition, which potentially increases the number of units to which they must attend.
Landlords also can expect more frequent inspections and audits. Consistent with the newly added definition of “resides,” the new laws require DOH to inspect any dwelling where a child under 18 with elevated blood-lead levels is “routinely present for 10 or more hours per week.” They also require DOH to audit the records of at least 200 apartment buildings per year. Particularly susceptible to audit selection will be buildings with peeling lead-based paint violations or violations for other indicators of deterioration, such as mold and leaks. DOH will also be required to randomly audit buildings constructed before 1960 and buildings located in geographic areas with a high prevalence of elevated blood-lead levels.
Landlords will be required to retain records of all lead-based paint notices provided to tenants—not just records of lead remediation work, as currently required—for at least 10 years.
Changes affecting daycare operators
The new laws also mean changes for operators of daycare facilities. While there is already a requirement to annually survey such facilities to determine the physical condition of painted surfaces, starting this summer, daycare operators will have to provide a copy of the survey results to the parent or guardian of each child who attends the facility. They also will be required to post notices of any DOH remediation orders.
The new laws will shorten the time for compliance with DOH remediation orders from 45 to 21 days, although that time can be extended upon a showing of undue hardship if the daycare operator maintains interim controls to protect children from lead-based paint hazards.
In addition to new requirements for landlords and daycare operators, the laws also prescribe new methods for testing water for lead and expand reporting requirements for DOH and the New York City Department of Housing Preservation and Development.
Landlords and daycare operators face potentially steep fines for violations. As always, a good plan is the best prevention.